*1 Cir.1972), this instructive on claimant, Mid-Gulf, SMITH, In question. Plaintiff-Appellant, Erwin J. cerebral thrombosis McCray, suffered a v. longshoreman working with a stroke while PICAYUNE, Cooper Carle CITY OF cargo vessel. unloading from a gang Hubbs, and Charles M. one-half one and McCray had worked Defendants-Appellees, and his duties were unloading the vessel physicians Three testified not strenuous. nothing had to do with McCray’s work USA, Administration, Farmers Home physician One his cerebral thrombosis. Intervenor-Appellee. relationship such a causal testified that No. 84-4505. Deputy The Commissioner could exist. McCray and the compensation
awarded Appeals, United States Court of grounds court reversed district Fifth Circuit. by supported not substantial award was July concluded that the award
evidence.1 We by evidence and supported substantial judgment of the district court. reversed the we have examined have authorities guide a clear standard to us announced determining much how evidence must be support of causation before that
adduced
evidence is considered “substantial.” We general guided only by principles such
are questions fact are re-
as doubtful to be employee injured in favor of the
solved need not his
the claimant establish case preponderance of the evidence. Our
holding provides more concrete Mid-Gulf guidance. proof by McCray offered to establish causation was no
Mid-Gulf weighty more than that offered Mrs. Following
Drake this case. the broad
general above, principles mentioned holding in Mid-Gulf,
our we conclude that finding supported AU’s of causation is
by substantial evidence.
Accordingly, the award Benefits
Review Board is AFFIRMED: the order of staying payment court award
pending appeal is DISSOLVED. opinion (E.D.La.1971). reported F.Supp.
1. The of the district court is *2 Stevens, III, Miss.,
Edward H. Picayune, for Smith.
Ray Stewart, Pace, M. J. Edmand Picay- une, Miss., Pederson, Jackson, H. Robert Miss., Picayune. for Jr., Sam Cooper, Picayune, Miss., P. for Hubbs. Parsons, Eddy Parsons,
Jack & Parsons Matthes, Miss., Wiggins, Cooper. for Barrett, Biloxi, Peter Atty., H. Asst. U.S. Miss., for Home USA-Farmers Admin. WISDOM, RUBIN, Before and HIGGIN- BOTHAM, Judges. Circuit RUBIN, ALVIN B. Judge: Circuit A landowner invokes a declaration that Picayune, Mississippi, violated state law and his federal constitutional equal process protection to due rights agreement when adja with the landowner, cent property adjacent zoned his for multi-family residential use. We find did follow state law when it zoned property, reject but the. landowner’s constitutional claims on the ba sis of this court’s en banc decision in Stern Hospital v. Tarrant County District.1 — Cir.1985), denied, my F.2d acknowledge cert. dissent in that but U.S. —, circuit.) 106 S.Ct. L.Ed.2d is the law of the (I expressed continue to adhere views to the protection. process equal By I. due filed, Cooper time the state suit was Cooper, Carie one Prior to Hubbs, tract had been sold Charles who below, and Erwin intervenor-defendants money had from the borrowed Farmers Smith, adjoining plaintiff, each owned (FmHA) Home Administration to finance city limits of tracts of land outside *3 apartments construction of on the land. Picayune, Mississippi. Smith had devel- eighty a resi- oped approximately acres as Chancery initially The Court issued the known as “Millbrook subdivision dential preliminary injunction sought by Smith. Estates,” single multi- contained and which property order mandated that the trial, family dwellings. At the time Coo- of A-l, City zoned that the restrain from issu- approximately 110 acres per developed had rescind, ing, any building permits and for a property his as residential subdivision of compliance the land that would not be in “The Woods.” was named which A-l zoning category, with the and it that 1980, City Picayune In the February of being performed. halt construction It prop- authorized the annexation of certain order February set this aside in the 1984 on erty, including Cooper the Smith and of motion intervenor-defendants Hubbs and tracts, in subsequently, and accordance Cooper, and Hubbs resumed construction law, in filed an action the with apartments of Cooper-Hubbs the on the Chancery property. to annex the Court property. The case was then to removed During 1980, May Cooper June met and federal court on Hubb’s motion. There- Plan- City the and the Council the after FmHA intervened. After trial ning object to discuss to Commission or magistrate, judgment before a federal was aspects concerning certain the annexation for rendered the defendants. agreement property. of his No was forth- 1980, coming, so, July Chancery the ac- II. Cooper’s respect property
tion to was Cooper’s dismissed on motion. The City Picayune of filed a timely mo- however, property the Smith annexed later tion remand on ground the case the that in 1980. proper. was not This removal motion was apparently pursued, no Cooper was continued meet with the it, party held on and no Planning litigation Council and this the Commission re- garding challenged and later or prop- challenging annexation of his is now the erty. In of September Planning propriety jurisdiction the the or the removal accept Commission voted to re- of federal Cooper’s the district court. quest property that his be annexed and A may, federal district court on its R-l, R-2, C-3,
that be zoned R-3 and motion, own consider the correctness of the A-l, newly as rather are most an- grounds If for it finds removal. that the Finally, May nexed tracts. the improvidently case removed and with City Council enacted ordinance which jurisdiction, out it should remand the case provided for Cooper the annexation of the to the state court.2 When case was property accordance with court, removed federal district that court request. Chancery his In March the jurisdiction. Hubbs, removal lacked Cooper ratified the who Court the defendant, Smith, however, had intervened property. as a based his was not satis- nonexistent, proper- purported, fied motion the but Cooper with the Therefore, diversity of ty. against citizenship filed this he action between Hubbs and Smith, alleged anticipation Picayune Chancery Court seeking injunctive grounds relief on FmHA would as a intervene defendant case, zoning Cooper’s violat- intention Hubbs’ to file rights against ed law and his constitutional counterclaim and the Smith 1447(c); 1983). Wright, § U.S.C. C. § Law Federal Courts at ed. The other defend- over Smith’s state claim appears ques- under U.S.C. 1983. law § join petition for removal. tionable. ants did not Gibbs,8 In United Mine Workers v. right Generally, the of removal is Supreme Court discussed the nature of the pleadings they stand determined power constitutional pendent to decide filed,3 petition for is when the removal proper state law claims and the discretion- join must in the all defendants for ary power. exercise of that The trial court If, however, at the time of trial removal.4 judicial is to look to “considerations judgment controversy is one over economy, convenience and fairness to liti- the federal court would have had which gants.” The district court should avoid removing original jurisdiction, a defendant “[njeedless law,” decisions of state should estopped protesting from that there was claim, dismiss the state claim if the federal right no an to remove as initial matter.5 “though not in jurisdictional insubstantial Since, judgment time of in this *4 sense,” trial, is dismissed before or if “the subject the district court did have matter substantially predominate.”10 state issues
jurisdiction of the case based on Smith’s certainly State issues predominated in presence constitutional claims6 and the of litigation. find, however, this intervenor-defendant,7 We the FmHA as an we district court did not abuse its discretion will not now dismiss the suit on the of basis deciding claim, the state in part law be- improperiety the of removal at the time it cause of presence the of the FmHA as an occurred.
intervening defendant. Had the state law
dismissed,
issue been
and the claim later
III.
court,
reasserted in state
the FmHA could
Smith asserted both a state law
have removed the case under 28 U.S.C.
claim and federal constitutional claims.
1442(a)(1)to federal district court.11 Un-
§
magistrate
who tried the case found
circumstances,
say
der these
we cannot
that
the
had followed state law in
that the district court
its discretion
abused
zoning
Cooper-Hubbs
the
property and also
by entertaining Smith’s state
claim.
law
of
found
favor
the defendants on Smith’s
Having
procedural
jurisdic-
noted the
magistrate
constitutional claims.
and
did
address,
posture
tional
parties
not
and the
this
we now turn to
apparently did
to,
the merits
object
not
of Smith’s claims.
pen
the court’s exercise of
jurisdiction
dent
over the state law issue.
IV.
Although this issue
was
raised
the
parties
appeal,
Mississippi
we choose to
A
provides
discuss it
statute
that no
because,
briefly
glance,
“determined,
at first
zoning
may
the discre
classification
be
tionary
pendent
established,
jurisdiction
exercise of
enforced” until after a
[or]
Finn,
6, 14,
726,
3. American Fire Cas. Co. v.
341 U.S.
9.
Id. at
public on matter been enacted an ordinance in accordance with interest, citizens, affording “parties agreement pursuant their to 21-1-27 of § opportunity ... an be heard.” Notice of Annotated, which sets Code published must be at least hearing regarding municipal out the state law an- hearing.12 This statute before property.14 nexation of 21- Pursuant § strictly has been enforced.13 code,15 City 1-29 of the state then filed in Chancery for annexation Court Section 102 of the own ordi- and the directed public court notice provides: nance be given objections of a to receive In the of a event annexation new area A annexation.16 show-cause notice on to the such areas to the City added published, but it did not shall in the A-l be considered Dis- proposed refer to or describe the trict until otherwise rezoned accord- regulations property. Apparently, map ance contained here- actions, governing rezoning parcel annexed, or unless to be proposed zoning approved by otherwise Council classifications, accompanied one more owner____ by petition of the When a however, such No objections, notices. is request- district were Chancery voiced in Court and that classification A-l, procedures ed other all approved court annexation. required shall be in Article followed (Amendment XII Change) V. added). (Emphasis Ordinance. *5 magistrate The found that 102 of § XII, of Section 1203 Article referred into zoning city the ordinance authorized the above, quoted 102 requires the § zoning agreement of property by annexed Planning public Commission to “hold a City between and the the landowner. Sec hearing submitting before report ... its tion 102 purports of the ordinance to allow zoning the proposed to the City [on issue] just that, it also require but has another applicant required Council.” The is post to When, pursuant annexation, ment. “a property notice on the of the nature and zoning requested district classification is hearing publish details of the and to notice A-l, other procedures than all of the [re hearing of the at least fifteen in ad- garding hearing proposed and of notice vance. zoning Planning issues before the City’s special zoning The requested by Cooper required shall be followed as Commission] permitted land his to be for purposes used in Article XII ... of this Ordinance.” residences, other single-family includ- ing apartments. City specific “zoning” The These Article finally pro- Council XII request and, despite acceded to his City cedures were never by the followed the in opposition others, Smith of and the Council the Only proceedings case. 15. § 17-1-15; § Miss.Code Ann. see provides, pertinent part: also Miss. 21-1-29 “When Code any §Ann. 17-1-17. passed by such ordinance shall be the mu- authorities, nicipal such shall ... authorities file petition Fisheries, Inc., chancery a City county in the the Cowan court of v. 379 So.2d Gulf located____” (Miss.1980); Laurel, municipality City which such 528 Gatlin v. of (Miss.1975); City 312 So.2d 439-40 Jack of Freeman-Howie, Inc., 84, 121 16. § 21-1-31 of the Miss.Code.Ann. son v. 239 Miss. So. provides, 120, 124 Jackson, (1960); City 2d Brooks v. 274, pertinent part: of Miss. So.2d ..., Upon filing petition of the such the chan- 14. § 21-1-27 provides, pertinent part: "When cellor shall fix date certain ... when a any municipality enlarge shall desire the held, hearing on said will be and by adding adjacent boundaries thereof thereto ..., given par- notice thereof shall be and all ..., unincorporated territory governing the au- in, by, being ag- ties or interested affected pass municipality thorities of such shall an ordi- grieved enlargement by proposed said ... defining certainty territory pro- nance the right appear hearing shall have the such posed corporate to be included in ... the lim- present objection proposed and their to such its____" enlargement____ Therefore, required by original law were the state followed. classification ... argue binding City petitioners. and the other defendants on the See obligations City any procedural City Freeman-Howie, Inc., the fulfilled Jackson v. regarding zoning (1960).19 may it have had the 239 Miss. So.2d through Cooper-Hubbs property the clear It is did not follow provisions the re- compliance with Mississippi state attempt law in its to zone garding municipal annexation. Were not Cooper-Hubbs property by agreement obliged for the fact that the also was upon city annexation. The zoning ordi- regarding statutes notice follow state regarding agreement nance zoning upon hearing municipal zoning determina- complies annexation apparently with the tions, argument might merit. have requirements of 17-1-15, Ann. Miss.Code § Laurel,17 however, In requirements Gatlin v. but the and hearing notice Supreme Mississippi Court discussed the ordinance itself were not followed statute, zoning the state Ann. thus violating Miss.Code both the ordinance 17-1-15, found: Hence, and the state statute. § under Mis- sissippi statutory and case law the agreed provisions
It is
clear from
of Section
zoning classification
Cooper-Hubbs
of the
zoning
17-1-15 that
valid
classifica-
property is not binding.20
tion,
including
zoning”
an “automatic
provided
as
classification
for in Section
The earlier
decision of
Mississippi
Ordinance,
Zoning
Laurel
Supreme Court in City
Biloxi v. Caw-
accompanied
(1)
public
must be
ley21
contrary.
is not to the
That case
(2)
hearing
proper
notice of the hear-
only
procedure
annexation;
involved
for
ing.18
it did not address
the relationship
of state
and annexation
contended,
statutes.
City in
do the
Gatlin
Under the
here,
Supreme Court deci-
defendants
“that the
hear-
notice and
Gatlin,
sion in
attempted zoning
of the
ing
for the
classification
Cooper property is without effect.
question
occurred simulta-
neously
notice and
for
VI.
*6
Supreme
annexation.” The Mississippi
Although
did not
accept
conform
argument:
Court did not
law in
property,
state
that
validity
proceed-
of the annexation
per
violation
state law does not
se con
ings
issue;
in the instant case is not at
stitute denial of the federal constitutional
validity
neither is the
notice
right
equal protection
issue____
of law. This court
hearing for such annexation at
so
in
County Hospit
held Stern v. Tarrant
only
record indicates that the
hear-
[T]he
and,
al,22
even under the view taken in the
ing which
inwas
fact held
hear-
was the
dissenting
opinion in that
a violation
ing before
present
the chancellor to
evi-
by
agency
of state law a state
or actor does
dence on the
in
for annexation
equal protection
not constitute a denial of
compliance
with
Code Anno-
unless the state acts
some
kind of
21-1-31,
(1972).
tated Sections
-33
prohibited class-based animus.23 No such
apparent
It is
original
that the
classifi-
allegation was made in this case.
property
question
cation of the
in
funder
city’s
“automatic”
also
Smith
asserts a constitutional due
ordinance]
compliance
was
Mississippi process
not in
claim. Smith does not contend that
Code Annotated Section 17-1-15
he
process
actually
received at
(Miss.1975).
(Miss. 1973).
17.
been
does the record contain recent informa-
tion as to the status of construction on the
Cooper-Hubbs property. Any relief afford-
ed the district court should take into present position
consideration the
parties.
The decision of the district court is RE-
VERSED on the state law issue and the
case is proceedings REMANDED for proper
determine the granted relief to be
petitioner. toAs the constitutional issues
raised, judgment of the district court
dismissing these claims is AFFIRMED. HIGGINBOTHAM,
PATRICK E. Circuit
Judge, specially concurring: join Judge thoughtful
I opinion, Rubin’s
writing only emphasis. to add one note of demonstrated, Judge
As Rubin has unique procedural
case comes to us in a
posture. A district court should seldom pendent jurisdiction
exercise over a for,
matter recently plain, as we made zon
ing peculiarly province matters are courts. Shelton v. College
Station,
(5th Cir.1986) (en
3276, 91 L.Ed.2d 566 America,
UNITED STATES of
Plaintiff-Appellant,
v. Q. HAILE, Defendant-Appellee.
Herbert
No. 85-1674. *8 Appeals,
United States Court of
Fifth Circuit.
July Maclsaac, Powers, III,
Steve John J. D.C., Washington, for plaintiff-appellant.